Sudarsan Barik and Sadhu Barik vs State of Orissa

R.N. Misra, J

The first application is by the father while the second one is by his son. Both of them were convicted for contravention of Clause 3(1) of the Orissa Rice Movement Control) Order, 1964, read with Section 7 of the Essential Commodities Act of 1955 and both of them were sentenced to suffer one week''s rigorous imprisonment with different sentences of fine by the learned Sub-Divisional Judicial Magistrate of Baripada. Their appeals having been dismissed, these revisions have been carried.

Prosecution alleged that the Petitioners are residents of village Ghoda bandha in Muruda P. S. of Mayurbhanj district. This village is close to the West Bengal frontier. On 17-8-1974 the weekly market at Dhumusahi on the other side of the border was being held. In the afternoon, the patrol party consisting of p. ws. 1. 3 and 4 met these two Petitioners with head-loads of paddy of twenty Kgs. each attempting to transport the same beyond the Orissa border without the requisite authority. The accused persons ran away after the paddy had been seized. In due course, prosecution was launched wherein the defence plea was that each of them was going to his village with the paddy and no attempting to cross the border.

Four witnesses were examined in each of these case for the prosecution and one for the defence. The Courts below accepting the evidence of the prosecution witnesses have accepted the prosecution case and convicted the accused person in the manner already indicated.

Mr. Mukherjee, counsel for the Petitioners in each case, has taken the stand that the prosecution evidence was not sufficient to establish the prosecution charge and, therefore, the conviction should not be sustained. Reliance is placed on the decision of the Supreme Court in the case of Malkiat Singh Vs. The State of Punjab, and the decision of this Court in the case of Ramhari Ghosh and Anr. v. State (1971) 2 C.W.R. 1150, for the contention that the prosecution evidence does not prove either attempt to commit or the commission of the offence. Malkiat Singh''s ease1, arose out of a similar charge as here. The Court found that the truck carrying the paddy had been intercepted at a place fourteen miles from the frontier and observed:

... On the facts found, there was no attempt on the part of the Appellants to commit the offence of export. It was merely a preparation on the part of the Appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to get fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it....... The test for determining whether the act of the Appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless....

(The italics are mine)

The other case on which reliance has been placed was one where the accused persons had obtained paddy on a bullock cart and had already loaded sod the bags from the cart into a boat within the river Subarnarekha. Subarnarekha is admittedly a river between the borders of Orissa and West Bengal. A learned Single Judge was of the view that the boat was still within the territory of Orissa and it was possible that the accused would have changed their mind and would not have taken the paddy beyond the Orissa border. Both the decisions essentially turned on their own peculiar facts. The italicised portion from the judgment of the Supreme Court is clearly indicative of this feature.

The facts in the present case are, however, different. The stand of the accused persons was that they were carrying the paddy to their village. P. w. 4 has categorically indicated the relative locations of the villages and from his evidence it transpires that the point of detection lay beyond the village of the accused persons. Otherwise stated, they had already crossed the village and were going beyond it. The place of detection was about twenty yards away from the market place intervened by a small river. In the Punjab case, the Supreme Court had accepted the defence stand on account of the fact that the place of detection was several miles within the Punjab territory. In the instant case, the total distance was about twenty yards. The stand adopted by the accused has been wen indicated to be not correct. Admittedly, on the otherside of the border, the weekly market was sitting where the paddy could be easily sold. These are peculiar facts of the case which were available to be considered to find out whether a case of attempt to commit the offence had not been made out. It is well-known that intention, preparation, attempt and commission of the act are the four different stages. Ordinarily at the first two stages no offence is committed and there are several instances where the third stage is made an offence too. The Single Judge decision of the Andhra Pradesh High Court in the case of In Re: Uppari Nallanna and Others, , supports the view I have taken. The Orissa Order makes attempt to commit the offence an offence. I am satisfied that the prosecution has been able to establish its case and the view taken by the Courts below cannot be challenged. The conviction, therefore, is unassailable.

Now comes the question of sentence. The learned Magistrate had imposed seven days rigorous imprisonment. Each of the Petitioners has already undergone at least two days imprisonment. I see no justification in requiring each of the Petitioners to return to the jail to serve the small sentences of imprisonment. I would accordingly reduce the substantive term of imprisonment to the period undergone, but sustain the imposition of fine. No particular reason has been given as to why the learned Magistrate had imposed a sentence of fine of Rs. 100/- on the father and Rs. 150/. on the son. I would accordingly direct that each of the Petitioners shall pay a fine of Rupees One hundred, or in default suffer simple imprisonment for two weeks. Subject to the modification on the question of sentence, each of the revision applications is dismissed.

Applications dismissed.